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Posts Tagged ‘contested case’

“Uh, seriously?” –is probably the best way to describe our response to the BLNR’s recent decision that Native Hawaiian cultural practitioners and conservationists (like Sierra Club members) have no standing to speak for the fate of public trust lands like Mauna Kea. And so, as people generally do when faced with crappy* administrative decision-making, we appealed today in court.

Read full article in the Hawaii Independent:

The State’s Board of Land and Natural Resources (BLNR) and the University of Hawaii are being challenged in court by Native Hawaiian practitioners, conservationists, and activists for rushing through a process that would pave the way for the building of the massive new Thirty Meter Telescope atop Mauna Kea despite public opposition.

Conservationists say that the BLNR’s decision to approve the CMP before ruling on the petition for a contested case hearing is an affront to meaningful citizen participation in agency decisions and neglects citizens’ substantial rights.

“Citizen participation in agency decisions is an essential part of our democratic tradition,” said Nelson Ho of the Sierra Club. “The concept of meaningful public participation ensures decision-makers will have adequate information and minimizes the possibility of public corruption and back-room dealing.”

*We use the word “crappy” here, in the most respectful and “aloha-ful” way humanly possible, but we have to call it like it is, yo.

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From Marti:

I admit to still being on cloud 9 about the recent announcement of the hearing officer’s decision on KAHEA’s standing to participate in the contested case on the research permit violations in the NWHI. Hooray! What an amazing affirmation of the power of showing up.

We have attended every possible hearing about research permits to the NWHI and raised serious concerns about the lack of enforcement action on these research permit violations. We have shown up to talk about the lack of standards to determine who should be allowed up there and the lack of best practices to ensure their activities do no harm, as the law requires. We have again and again said that these research permit violations are a serious breach of public trust, and that rules should apply equally, no matter who is in violation–everyone should be held to the same standard: fishers, researchers, sight-seers, everyone.

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I wish had a dime for every time I’ve heard someone say with regards to these research violations, “Trust me, researchers would never harm the resource.” Talk about totally missing the point. The point is that researchers, like everyone else, are obligated to know and follow the rules put in place to protect this fragile public trust resource. Simple as that.  The fact is most people don’t ever to intend to harm the environment, but they do because they don’t follow the rules, don’t think that their actions could have an impact.

It was incredibly empowering to sit at that hearing table – elbow to elbow with HIMB’s attorney and the Attorney General on behalf of DLNR – and have an impartial officer of the court listen to all three sides. We had an equal opportunity to present arguments and evidence. And in the end, this impartial officer said, “Yes, KAHEA brings a meaningful perspective to this discussion and should be party to this case.”

Wow.  For that, my faith in the public decision-making process is renewed.   We couldn’t have asked for a more meaningful affirmation of our voice and role.

Too often the voices of those most directly affected by the decisions of officials are marginalized or even lost altogether. It is easy for money and politics to drive decisions. But when those influences are stripped away and those who have nothing to give but love for our ‘aina – people like Uncle Buzzy – can sit at a table and be heard on equal terms with all rest… that is when the best decisions are made.

It was these people – those without power or money – that led the struggle for the strongest possible protections in the Northwestern Hawaiian Islands and successfully made their voice heard. And it will be these same people who will continue to ensure that those protections are fully implemented and enforced….  because these protections are nothing if they aren’t enforced, fully.

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Hooray, hooray today–for the little guy!

Highlights of KAHEA’s concerns about lack of DLNR enforcement (from our recent webpage update):

The violations were first reported to DLNR staff in May 2006 while the vessel was still in the NWHI. But DLNR staff failed to notify the proper enforcement division, DOCARE, until late February 2007, almost a year after the infractions occurred. No investigators met the ship when it docked in Honolulu to inspect what the researchers brought back with them.

“This is a major problem,” said Marti Townsend, Program Director for KAHEA. “The history of close working relationships between DLNR and HIMB staff has clearly called into question DLNR’s ability to be objective and properly enforce the law.”

Before the incidents were investigated by DOCARE and voted on by the Land Board, staff with the Aquatics Division of DLNR attempted to negotiate a penalty with the researchers at HIMB. The staff brought the enforcement action before the BLNR twice – first in January 2007 and again in July 2007. Both times the staff recommended that the Land Board impose weakened penalties against the HIMB researcher, side-stepping the Refuge’s strict “one strike” law that prohibits future permits to be granted to past permit violators.

“Given all of the tremendous public support for the strongest possible protections, and political will for the creation of these protections, it is astonishing that personal friendships and financial ties still seem to determine the near absolute lack of enforcement of NWHI rules,” said Townsend.

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From Miwa:

It’s true that the HIMB researcher currently under investigation for NWHI permit violations is coral disease researcher, and that coral disease is bad stuff. In doing this work, we’ve learned more about coral disease than we probably ever wanted to–coral disease is an important concern in our oceans worldwide.

So why advocate strict enforcement for a coral disease researcher?

What’s important to understand is that: It’s not just about understanding the ecosystem and its resources.

It is about achieving that understanding in a pono way–by researchers who respect the cultural and natural significance of the resource, take responsibility for their actions, and are committed to following the rules put in place to protect this fragile and uniquely Hawaiian place.

And so you have to ask: was this research done in a pono way?

  • The 2006 HIMB expedition on the NOAA vessel, Hi`ialakai, was one of the first major expeditions permitted in the newly established no-take state Refuge for the Northwestern Hawaiian Islands.
  • Despite a prohibition on the transport of live samples and the dumping of wastewater, state and federal officials noticed the researcher was transporting pieces of live coral over 100 miles across the multiple state and federal designated marine protected areas in an open-flow holding tank — a system that dumps used water from the tank back into the ocean.
  • Official reports also allege she cultivated bacteria associated with coral disease while the ship traveled from Johnston Atoll.
  • HIMB was not granted a permit to import coral or bacteria from Johnston Atoll to the Main Hawaiian Islands from the Agriculture Department. Nonetheless, the researcher was discovered to have bacteria samples from both NWHI and Johnston Atoll under cultivation on board the Hi`ialakai.

    We’re not the only ones for whom this stuff seemed just a little, er, inappropriate.

    • The methods proposed by the HIMB disease researcher had also raised red flags in the scientific community. Before the vessel departed from Honolulu, scientific advisors reviewing the researchers proposal to import disease bacteria from Johnston Atoll to the Main Hawaiian Islands for the state Department of Agriculture noted “possible disastrous consequences” from the research methods, including the spread of potentially invasive coral species and coral disease.
    • In their report, they discuss the “unclear scientific merit” of the research and found “little evident benefits from a conservation perspective.” They also expressed specific concerns about the proposed use of an “open flow” system for the transport of live samples and, instead, recommended that “all water in which the corals or microbes from them are held shall be kept in containers that do not release effluents into open or semi-open systems unless that water is sterilized or disinfected.”

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    I come from a conservation and research background–and I admit that makes me feel a bit squirmy when the human footprint being talked about hits so close to home. This is a true test for all of us–for conservation and science communities–to recognize the scope of impact of our own activities. For a place as fragile, and as culturally and ecologically unique as the Northwestern Hawaiian Islands, this means taking a hard look at our attitudes, our institutions, our intentions, and our ambitions.

    In the end, it’s really all about respect. It’s either there, or it’s not. Respect for rules, respect for the resource, and respect for the concerned public to whom this public trust resource ultimately belongs.

    In her testimony to the BLNR on July 27, 2007, the HIMB researcher under investigation defended her actions, characterizing the violations as a “minor misunderstanding.”

    “There was never any risk to the environment for what I did, whether it was approved or not,” she testified.

    For the largest conservation area of its kind in the world, for the people who fought so hard for the rules protecting this incredible and untouched Hawaiian place, for all the future generations of Hawaiian people to whom this place also belongs… I have to believe that we can do better.

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    (top picture from http://news.bbc.co.uk/1/hi/5084944.stm, bottom from kahea.org)

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    Investigation of HIMB Research Permit Violations for Northwestern Hawaiian Islands Expanded,
    Contested Case Hearing Officer Recommends Long-Time Advocate, KAHEA, Be Party to the Case

    HONOLULU – In a historic move, citing KAHEA’s long history of actions to protect the NWHI, state-appointed hearing officer for the Board of Land and Natural Resources, Louis Chang, recommended on Friday that the Board grant KAHEA: The Hawaiian-Environmental Alliance standing as a party to a landmark case concerning the first recorded major violations of the state’s new stringent Northwestern Hawaiian Island Refuge rules. “The Northwestern Hawaiian Islands are a public trust resource, and we welcome this affirmation of our kuleana to ensure that the strict rules we worked so hard to establish are fully enforced so that this fragile and unique place is well-protected,” said Vicky Holt-Takamine, KAHEA Board of Directors President.

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    Federal and state officials have testified that in 2006, during one of the first major research expeditions permitted to conduct extractive activities in the state’s newly created no-take Refuge, scientists from the Hawai’i Institute of Marine Biology (HIMB) — including a former state Department of Land and Natural Resources employee –cultivated coral disease bacteria in the NWHI, transported bacteria within and outside of the NWHI, and attempted to bring bacteria cultures to the Main Hawaiian Islands, in violation of the state’s strict permit requirements and state and federal quarantine and customs laws regarding the transport and import of disease organisms. Officials testified that an HIMB disease researcher harvested, cultivated, and transported live coral within the NWHI, dumping wastewater from the coral tank overboard as they traveled between islands. These actions, which occurred in 2006, represent serious violations of state permit conditions designed to protect the NWHI from the spread of disease and invasive species, as well as state and federal laws.

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    The NWHI Refuge specifically establishes a ‘do no harm’ standard for all activities there,” said Louis “Buzzy” Agard, former NWHI resident who fished commercially there and later fought for strong conservation measures. “This should mean human activity in the NWHI is strictly limited so as to leave no human footprint on what is left of this delicate marine ecosystem.” According to Agard, “If this were a fishing violation, they’d throw the book at them. But this is a case of colleagues and friends of DLNR staff. There seems to be a double standard for these violators.”

    Efforts by the Hawaii Institute of Marine Biology (HIMB) to block enforcement of strict state rules protecting the Northwestern Hawaiian Islands State Refuge were dealt a blow with the publication of the recommendation on Friday indicating that — as per KAHEA’s request — the investigation into apparently illegal activities would now be broadened and that KAHEA has standing in the case. There have been persistent rumors, however, of back-room attempts to lobby Board members regarding this case and to encourage DLNR to take extraordinary measures to overturn the hearing officer’s recommendation.

    “This is historic,” said Miwa Tamanaha, Executive Director of KAHEA. “We have serious allegations of research permit violations in the face of more people and research vessels heading to the NWHI. What is decided here in this first enforcement action against research permit violations will affect all future decisions about how to fully protect this uniquely Hawaiian no-take marine environment.”

    The Land Board is expected to rule on the recommendation March 7, 2008.

    You can see the full case filings and get more information at www.KAHEA.org

    (top photo from keoki, and bottom photo from kahea.org.)

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